Mr. Speaker:
I thank the hon. Gentleman for that point. The right hon. Member for West Dorset (Mr. Letwin) is miles away from the issue that we should be discussing.

Mr. Letwin:
With his usual acuity, the Chairman of the Home Affairs Committee is on to something. I could not resist the opportunity of pointing out a real problem. Now that I have done that, I shall not intrude on your goodwill, Mr. Speaker, or that of the House any further. I have made my point. There is a problem that desperately needs to be resolved because it deals with the life and death of our citizens. In the meantime, let us, by all means, continue with the operation of the Act.

4.23 pm

Mr. Chris Mullin (Sunderland, South):
We all agreeat least, those of us who have studied the matter in any depthabout the need for these measures even though we might do so reluctantly. We recognise how draconian they are. We also recognise that it is not inconceivable that they will remain in force for many years. Therefore, the people who have been detained will remain detained without trial for many years. It behoves us to get this right.

I propose to make a few remarks about a couple of issues that have already been touched upon: the conditions in which such people are held and the consideration that has been given to the alternatives. Reference has been made to the safeguards that exist, and the right hon. Member for West Dorset (Mr. Letwin) put them down to the assiduous opposition of himself and the Liberal Democrats. In fact, several proposals, including the sunset clause, appeared in the report of the Home Affairs Committee.

Mr. Letwin:
It would be churlish of me not to admit that that is perfectly true.

Mr. Mullin:
I am grateful to the right hon. Gentleman. Other proposals came from the Joint Committee on Human Rights.

As the House might imagine, I agree with several points that my right hon. Friend the Home Secretary made. In particular, I agree with his point that the measures have been used sparingly. There was some fear when they were first mooted that they would be applied to a far larger number of people, and we must be grateful that that is not the case.

I have already made a couple of points that were taken up by Lord Carlile, and I hope that they will be considered seriously. Lord Carlile suggested amending the law to refer to "acts preparatory to terrorism". He said:

"if the criminal law was amended to include a broadly drawn defence of acts preparatory to terrorism, all could be prosecuted for criminal offences and none would suffer executive detention".

That went slightly beyond the scope of his review, but given the source of the suggestion, it ought to be taken seriously.

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I have already made the point about intercept evidence. I understand that, among the security services and others with an interest in this area, there is a strong difference of opinion about whether it is desirable to make intercept evidence available in court. I shall watch with interest the outcome of any review.

Turning to conditions of detention, certainly it was the case early on that people were held in pretty harsh conditions in Belmarsh. At one stage, they were allowed only 30 minutes out of cell during the day. When the measure was being introduced, Lord Rooker said that they would be held in remand conditions, and not alongside convicted prisoners. I know that some improvements have been made since the low point that was touched early on. I think that I saw Martin Narey quoted as saying that people are now allowed out of cell for seven hours and various other measures have been taken.

If we are to hold on these terms people who are unconvicted, I hope that we will, as we were assured at the time of the measure's introduction, detain them in conditions that reflect the fact that they are unconvicted and that their detention is indefinite. At one stage, there were signs that detention was beginning to damage the mental health of some of those held, as it might do to any of us in those circumstances.

Mr. Bercow: I do not want unduly to embarrass the hon. Gentleman, but I agree with his remarks about the treatment of people who are unconvicted. Surely we need an assurance of national security and not of personal privation. If we can be reassured that proper procedures are in place to guarantee the former, there need be no requirement for the latter.

Mr. Mullin:
I completely agree, and I am glad to see that the point unites hon. Members on both sides of the House.

I turn now to a compelling point made by Lord Carlile about allowing appeals from abroad to be made by those who have been detained under this measure, who have agreed to go abroad and who have found a haven to accept them. At the moment, people in that position who take the view that they are not terrorists have no means of removing the stain, and it is quite a large stain, from their character. I imagine that only a handful of people would want to take advantage of the opportunity to appeal, but the possibility ought to be left open. As we knowwe saw it with the pilot whom the Americans were trying to extradite some time agothe security services can be wrong in the information that they lay before Ministers, or further information may come to light which casts doubt on the original. As Lord Carlile says, there ought to be some mechanism by which people can remove that stain from their character.

Finally, at paragraph 6.13 of the report, Lord Carlile touches on alternatives to custody. I do not suppose that he means community service but, to return to the point made by the hon. Member for Buckingham (Mr. Bercow), the purpose of the exercise is to satisfy ourselves and those whom we represent that such people cannot pose a threat. Once we have done that, all other considerations melt away. Lord Carlile suggests that restrictions on movementperhaps even taggingcould pose an alternative to what are otherwise

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extremely draconian measures. I shall not go into too much detail on that for fear of being denounced as a namby-pamby liberal, which I am not. Although it is not my suggestion, it is in the report, so I hope that the Home Secretary will address it.

4.31 pm

Simon Hughes (Southwark, North and Bermondsey):
The motion deals with important and controversial matters, as hon. Members know from our debates on the Anti-terrorism, Crime and Security Bill 15 months ago. The discussion has been even tempered and balanced. A coalition of the Select Committee on Home Affairs, the Joint Committee on Human Rights and the Conservative and Liberal Democrat Front Benches in both Houses ensured that we could discuss the issues again, and I am glad to have the opportunity to do that.

I think that the Home Secretary remembers, however, that the votes cast at the other end of the building, principally by Liberal Democrat and Conservative colleagues, along with a few Labour and Cross-Bench independent Members, made it clear to the Government that they could not get away with an indefinite provision along the lines that they wanted. We have no regrets about that. Through intelligent conversation, and frantic legislation, we came to a collective decision that it was necessary to build in safeguards for what is a derogation from an important human right. Like other hon. Members, we will not divide the House on the motion. To put it bluntly, we are in the middle of the process for which protection was given by review and checks and balances. Having persuaded the Government and Parliament to accept various checks and balances, it would be unreasonable and unfair not to allow them to be used to the full. That does not mean, however, that the issue is of any less importance.

It remains a difficult matter, not just for liberals and Liberal Democrats, that a power is in force in the UK which is outwith the European convention on human rightsit is a derogation from itand the Human Rights Act 1998, which we passed only four and a half years ago, to allow people to be detained indefinitely without trial. That is of considerable concern. It is of most concern to the people in question, who are held without having been found guilty of anything. There may be only a handful of them and I concede to the Home Secretary, as I have set out consistently, that he has been true to his word and used the power sparingly. We should be grateful for that, but it is not a legislative requirement on him. He has chosen to use that discretion properly within the powers, which are significant. There is no limit to the number of people who could be detained under them. As it happens, only a few have been.

However, some people have been detained and it is no surprise that the fifth report of the Joint Committee on Human Rights, published last Wednesday as a preparation for today's debate, begins:

"Although the Bill"

now the Anti-terrorism, Crime and Security Act 2001

"was improved in a number of ways during its parliamentary stages, we continue to be concerned about a number of aspects of it."

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Specifically, the Committee was worried about

"a new power to detain indefinitely a class of 'suspected international terrorists' contained in Part 4 of the Bill . . . which was only doubtfully compatible with Convention rights."

Over the page, the Committee expresses a second concern about

"the Government purporting to derogate from the ECHR Article 5 . . . to make the derogation . . . effective in the law of the United Kingdom by amending the Human Rights Act 1998"

by way of a derogation order. The Committee continues:

"The legal validity of the derogations and of the Order is currently the subject of legal proceedings, and their impact on human rights in the United Kingdom may be significant."

We share the Committee's continuing concern, which is why we are glad that we persuaded the Government with our voices and votes to bring the measure back to Parliament after 15 months before the power could be extended. They will have to do so annually and, in addition, the measure has a limited lifespan. However much we have argued with the Home Secretary about whether there was justification in lawI have told him publicly that I have never questioned the integrity of his judgment on the necessity of the measureit is better to have flexibility in the use of the ECHR and the Human Rights Act, which was built in from the outset, than question, as some have done, the very basis of the convention.

The ECHR is not an inflexible document and it allows derogation for such a purpose. The Home Secretary argued 15 months ago that we ought to have the derogation as we needed that protection and it was likely that others would follow us. However, as my hon. Friend the Member for Somerton and Frome (Mr. Heath) implied in his intervention, no other European Union country has subsequently sought to derogate from the ECHR. None the less, flexibility, together with parliamentary scrutiny, is a much better alternative to ripping up, rewriting and renegotiating the convention. We believe that the convention should stand and are glad that the Human Rights Act was passed, allowing arguments to be made in the court down the road instead of people having to wait six, five or four years to go to Strasbourg. We hope that the public accept that that is an advantage.

I intervened on the Conservative spokesman partly to remind him and the House that there are other protections to deal with an issue uppermost in the public mind and the tabloid press. There is an argument that we cannot turn away somebody who is claiming asylum even if they are a threat to our national security, and cannot revoke their right to be here even if they are such a threat. It is clear from article 1F of the Geneva convention on the status of refugees that somebody who has committed a crime against peacea war crime or a crime against humanitycan be refused entry, whatever they are claiming. Article 33 states that the benefit of asylum provisions

"may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country."

The fear that asylum seekers are outwith the protection of the law on national security and are a threat is misplaced. It is wrong, unfair and often prejudicial to pretend that they are.

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Finally, there is the linked question of whether there is a categorythis is the basis of the Home Secretary's original argumentof people whom we could send away under the ECHR but not for other reasons of international law. We accepted the Home Secretary's argument that there are people in that category when he came to the House seeking the power. We argued then, and continue to argue, that there are other ways in which to test their position, for example by trial in camera to protect security information and so on. It is always better to try alternatives to the option of detention without trial. We were not satisfiedwe are still not satisfiedthat all the options have been exhausted.

I add my thanks to the Home Secretary for using the power sparingly, in the sense that that was honouring his commitment. I also thank Lord Carlile of Berriew, who produced a clear report with some significant recommendations. The Home Secretary said that he would look into at least one of those recommendations. The right hon. Member for West Dorset (Mr. Letwin) has argued that it would be better if we redefined the people with links with terrorism. We sign up to and share that view. If that can be agreed, I hope that an amendment can be incorporated soon. We agree with the recommendations of the Joint Committee on Human Rights, to which I shall return.

The Government offered the concessionit was accepted a year and a quarter agothat there should be a cross-party Committee of Privy Councillors to examine the working of the Act. That work is now taking place. Lord Newton of Braintree is chairing the Committee. I understand that before it is necessary to have this debate again, the Committee will have produced its report. That is one of the specific reasons why we feel that it would be wrong to say that we should not wait a little longer. The Committee is in the middle of its work. Having accepted that as a protection mechanism, it is only right that we should wait for it to report. We wish the members of the Committee well and we look forward to their report, which I am sure will be honest and helpful.

The fifth report of the Joint Committee of last Wednesday picks up some of the other specific issues to which the Chairman of the Home Affairs Select Committee has referred. I shall mention them so that they are on the record and ask the Home Secretary, or the Minister of State when she replies, to undertake that the Government will consider them all. First, in paragraph 20, it is recommended that a different power should be given to the Special Immigration Appeals Commission to examine material so that it has

"both 'open' and 'closed' material",

and is able to form a view about that so that it can form a better picture.

Paragraph 21 states that the availability of appeals is a safeguard, and adds that the Home Secretary would want to urge that they must happen, and happen soon. It is no good having a safeguard that is held up while another legal process happens. It may be proper to go to the House of Lords and the European Court of Human Rights to challenge the validity of the decision made last year by the Court of Appeal, which tested the national

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emergency issue. However, that is not acceptable if that is to the exclusion of the ability to have the Special Immigration Appeals Commission, which has the powers of the High Court, to be able to determine whether detention is unlawful. That is why the provisions were made. The fact that appeals have not been determined is not what we expected. I hope that that situation will be remedied extremely soon.

It would be helpful in future if the Government made a clear statement setting out when they believed that a public emergency had been achieved, as it were, so that there could be, as the Select Committee recommended, an official declaration of that, rather than that being done implicitly and, as happened last time, belatedly. In addition, the Select Committee referred to the appropriateness of legal advice. A recommendation is made in paragraph 42 that there should be a better guarantee of appropriate legal advice that is speedily available to detainees, and that that should continue at all stages in the appeal process. It is said that there should be no less ability to be represented at the Court of Appeal or the House of Lords than at a lower level.

Paragraphs 47 and 48 state that any piece of evidential material should be classified as "closed"that is, not able to be seen

"only if there are substantial grounds for thinking that making it available to the detainee, or his or her legal advisers, would compromise the effort to protect the public against the national emergency that gave rise to the derogation under . . . article 15."

The problem, as the Committee points out, is that Parliamentincluding, possibly, the Intelligence and Security Committeecannot form a view about the immediacy of the national threat and the national emergency if it does not have access to the maximum possible material. Therefore, we ask that the Government respond positively to those recommendations, which were made in a balanced way, as well the recommendation about the conditions of detention.

One reason why it seems to us that today there is a case, without dividing the House, to allow the power to continue is that court hearings about the validity of detention are under way. We accept the point of view expressed by the Home Secretary todayalthough I have heard him put things slightly differently, if I can be gentle about itthat the courts should always have the ability to review the Executive. It is a safeguard of the constitution that the courts exist to check on the Executive, just as Parliament doesParliament first, hopefully by getting the legislation right and holding Ministers to account, and the courts later.

I realise that it is not the responsibility of the Home Office, but it is difficult and unacceptable enough that there is a period when people are detained without trial in this country, but at least there are safeguards. It is entirely unacceptable for British and other citizens to be held in a place such as Guantanamo bay when there are no powers for them to be brought before the courts. I hope that the Home Office will make representations to the Foreign Office, if it has not done so already.

It is not compatible with any sense of international human rights that there is a part of the world to which people can be taken, whatever their nationality, that appears to be outside the legislative and judicial purview of some independent tribunal. That is not acceptable. It is bad enough that people are held without trial in

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Belmarsh prison or elsewhere; it is doubly and triply worse that people are held without trial on the other side of the world, with no justification having been proved before any independent authority at all.